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[2017] ZACC 3
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Association of Mineworkers and Construction Union and Others v Chamber of Mines of South Africa and Others (CCT87/16) [2017] ZACC 3; (2017) 38 ILJ 831 (CC); 2017 (3) SA 242 (CC); 2017 (6) BCLR 700 (CC); [2017] 7 BLLR 641 (CC) (21 February 2017)
Links to summary
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 87/16
In
the matter between:
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
UNION
First Applicant
PERSONS
REFERRED TO IN ANNEXURE “A”
TO
THE NOTICE OF MOTION
Second and Further Applicants
and
CHAMBER
OF MINES OF SOUTH
AFRICA
First Respondent
HARMONY
GOLD MINING COMPANY
LIMITED
Second Respondent
ANGLOGOLD
ASHANTI
LIMITED
Third Respondent
SIBANYE
GOLD
LIMITED
Fourth Respondent
NATIONAL
UNION OF
MINEWORKERS
Fifth Respondent
SOLIDARITY
Sixth Respondent
UNITED
ASSOCIATION OF SOUTH AFRICA
Seventh Respondent
MINISTER
OF
LABOUR
Eighth Respondent
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Ninth Respondent
Neutral
citation:
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
[2017] ZACC
3
Coram:
Nkabinde ACJ, Cameron J, Froneman J, Jafta J,
Madlanga J, Mbha AJ, Mhlantla J and Zondo J
Judgments:
Cameron J (unanimous)
Heard
on:
24 November 2016
Decided
on:
21 February 2017
Summary:
section 23(1)(d) of the Labour
Relations Act — collective agreement between the chamber of
mines and unions — validity
of extension of collective
agreement to members of union not party to collective agreement —
meaning of “workplace”
in section 23(1)(d)
individual mining operations not separate workplaces — each
mining organisation constitutes a “workplace”
—
collective agreement validly extended to members of union where union
not party to the collective agreement
ORDER
On
appeal from the Labour Appeal Court (dismissing an appeal from the
Labour Court):
The
following order is made:
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
JUDGMENT
CAMERON
J (Nkabinde ACJ, Froneman J, Jafta J, Madlanga J, Mbha AJ, Mhlantla J
and Zondo J concurring):
Introduction
[1]
At
issue is whether workers at five gold mines may exercise the right to
strike while an agreement prohibiting strikes, to which
they were not
party, is in force.
[1]
The union representing the majority of workers at each of the mines
is the first applicant, the Association of Mineworkers
and
Construction Union (AMCU). The second and further applicants
are its members at those mines. But AMCU is not the
majority
union at any of the mining companies who own the mines. The
question is whether an agreement concluded between mining
companies
and their collective representative, on the one hand, and unions
representing a majority of workers of those companies,
on the other,
binds employees at individual mines where their own union, which is
not party to the agreement, is the majority union.
[2]
Behind
that question, with its lawyerly remoteness, lies the grievous
struggle for better wages and conditions for the generations
of
mineworkers who have laid the foundations for this country’s
wealth.
[2]
And at its fore is an increasingly intense contest between unions
about which will represent the workers in that struggle
now.
This litigation is itself part of that contest.
[3]
The
legal issues arise from three provisions in the Labour Relations Act
(LRA).
[3]
The first empowers employers and unions to make binding on
non-parties a collective agreement they have concluded.
Section
23(1)(d) enables employers to do so if (a) the employees are
identified in the agreement; (b) the agreement expressly binds
them;
and (c) the trade unions party to the agreement “have as their
members the majority of employees employed by the employer
in the
workplace”.
[4]
[4]
“
In the workplace”.
There’s the rub. That brings to the fore the second
pivotal provision. It is the
LRA’s definition of
“workplace”. This, in so far as it is relevant,
stipulates that “workplace”
means “the place or
places where the employees of an employer work”. But it
adds a proviso:
“
If
an employer carries on or conducts two or more operations that are
independent of one another by reason of their size, function
or
organisation, the place or places where employees work in connection
with each independent operation, constitutes the workplace
for that
operation”.
[5]
[5]
So
was each mine where AMCU had a majority an “independent
operation” by reason of its “size, function or
organisation”?
Later. First, the third pertinent
provision. This, when the previous two conjoin, bares the
statute’s teeth.
It is the proscriptions on striking in
section 65. It prohibits striking by anyone who “is
bound by any arbitration
award or collective agreement that regulates
the issue in dispute”.
[6]
It is this provision that lies at the core of the legal relief sought
and granted in the courts below – and which is
the focus of
AMCU’s keenest objection.
Background
and litigation history
[6]
Now
the facts. In 2013, the Chamber of Mines of South Africa
(Chamber) (first respondent),
[7]
acting on behalf of its members in the gold mining sector including
Harmony Gold Mining Company Limited (second respondent), AngloGold
Ashanti Limited (third respondent) and Sibanye Gold Limited (fourth
respondent), began negotiations about wages and working conditions.
The unions with which it negotiated represented the majority of
workers in the sector: National Union of Mineworkers (NUM) (fifth
respondent), Solidarity (sixth respondent) and United Association of
South Africa (UASA) (seventh respondent).
[7]
AMCU, with its dramatically rising
membership, was invited to join the negotiations and did – but
on 9 September 2013 it rejected
the offer in which they culminated.
NUM, Solidarity and UASA accepted that offer. On 10 September
2013 the Chamber,
acting on behalf of the mining companies, and these
three unions concluded a collective agreement – the one at
issue here.
Though the collective agreement has expired, the
same parties have concluded another that is materially identical.
The agreement expressly made itself applicable to all the companies’
employees – even those not members of the party
unions.
[8]
Because
AMCU was not a party to the agreement, it did not regard itself as
bound. On 20 January 2014, it notified the three
companies that
its members would strike from 23 January 2014. In response, the
Chamber urgently applied to the Labour Court
to interdict the
strike. It succeeded. On 30 January 2014, the
Labour Court (Cele J)
[8]
granted an interim interdict against AMCU and its members. On
the return day, that Court (Van Niekerk J) confirmed the
interdict.
[9]
AMCU, having sought unsuccessfully to appeal direct to this
Court,
[10]
then with the leave of the Labour Court
[11]
appealed to the Labour Appeal Court. Its appeal failed.
[12]
[9]
AMCU now seeks leave to appeal to
this Court. Each judgment of the Labour Court and the
Labour Appeal Court is detailed
in setting out the facts, and is both
nuanced and erudite in considering the law. It is not necessary
to rehearse their findings
or to try to emulate the quality of their
reasoning.
[10]
The question is whether the
agreement bound AMCU members at the five mines where it was in the
majority. If it did, the statute
prohibited its members from
striking. If it didn’t, they were statutorily at liberty
to strike. It all turns
on what “workplace” means
in the statute and, more specifically, in section 23(1)(d).
Does it mean all the
mines of the Chamber member companies overall –
where AMCU was in the minority? Or the individual goldmines –
where it had a majority? And if it was all the mines of the
member companies overall, thus snatching away from AMCU members
at
the individual mines their right to strike, does the statutory
provision withstand constitutional challenge?
Parties’
contentions
[11]
AMCU contends that the definition of
workplace does not apply to the reference in section 23(1)(d)(iii) to
“the majority of
employees employed by the employer in the
workplace”. This is because the statute’s
definitions apply only “unless
the context otherwise
indicates”. It also contends that, if the definition does
apply, it can be interpreted in what
it calls a “broad”
way – with the effect that “workplace” means an
individual mine and not all an
employer’s operations taken
together.
[12]
AMCU
also argues that the Chamber and the unions who concluded the
collective agreement ought to have extended it, if at all, under
section 32.
[13]
This provision requires the Minister of Labour (Minister) to extend a
collective agreement concluded in a bargaining council
where the
majority-unions and majority-employers vote in favour of the
extension.
[14]
The Minister may not extend the agreement unless satisfied that
specified preconditions exist.
[15]
None of these preconditions is required for a section 23
extension.
[16]
[13]
AMCU
appreciates, of course, that the Chamber is not a bargaining
council. Nor have the Chamber and the unions negotiated
in a
bargaining council incorporated as the LRA requires.
[17]
AMCU says that, although not a statutory bargaining council, the
forum in which the Chamber and unions negotiate in effect
operates as
one. By using section 23(1)(d), the Chamber circumvented
section 32’s legislative obligations and
requirements.
That should not be permitted.
[14]
Hence the Labour Appeal Court erred
in not finding that the collective agreement is in substance a
sectoral level collective agreement.
It ought to have found
that the use of section 23(1) circumvents the safeguards in
section 32 and defeats the design of section 23(1)(d),
which
ought not to apply here. As a result, AMCU argues that the
purported extension under section 23(1)(d) is invalid
and of no
force and effect.
[15]
AMCU further argues that, if its
interpretative and substantive arguments do not prevail, then section
23(1)(d) is constitutionally
invalid. This is so for
interrelated reasons.
[16]
Centrally,
AMCU contends, section 23(1)(d) unjustifiably limits its members’
rights to fair labour practices, including the
right to bargain
collectively through AMCU,
[18]
the right to strike
[19]
and the right to freedom of association.
[20]
[17]
The
Chamber concedes that section 23(1)(d) limits the right to
strike. The Minister denies that but argues that, if it
does,
the limitation is justifiable. NUM submits that section
23(1)(d) does not limit the right to strike at all, at least
not
directly. And any indirect limitation is reasonable and
justifiable. AMCU says the limitation cannot be justified
under
section 36 of the Constitution.
[21]
The Chamber, the Minister and NUM say it can. The other
unions party to the agreement at issue did not participate
in the
proceedings and abided the outcome.
[18]
AMCU builds on these propositions to
contend that the extension of the agreement in terms of section 23 is
also offensive to the
rule of law. First, it says, although the
extension did not by itself constitute an exercise of public power,
the extension
was tantamount to one. This violates the rule of
law because (a) the rule of law requires that public power be
exercised
by state actors; and (b) permitting private actors to
effectively exercise public power without independent public
authority oversight
violates the principle of legality. There
is no remedy under the LRA to review section 23(1)(d) extensions,
AMCU says.
Also, section 32 has explicit safeguards.
Section 23(1)(d) has no comparable legislative and regulatory checks
and balances.
The Labour Appeal Court ought to have found the
provisions of section 23(1)(d) incompatible with the
Constitution.
[19]
Second, AMCU argues that section
23(1)(d) places no duty on private actors extending collective
agreements to act in the public
interest or in the interest of
non parties who may be bound. They are neither accountable
nor bound by the duties of
public administration and public interest
under section 195 of the Constitution.
[20]
Third, while it is possible to
review the decisions of a public authority, this is not possible with
private actors. There
is no access to a court of law if their
decisions are prejudicial to non-parties or do not cater for their
interests. Fourth,
AMCU contends that the provisions of section
23(1)(d) read with section 65(1)(a) permit private parties to
conclude agreements
that deny non-parties the right to exercise
fundamental constitutional rights, including the principle that
encapsulates the right
to be heard before the extension of any
collective agreement (
audi alteram
partem
).
[21]
The parties to the agreement dispute
AMCU’s interpretive and constitutional contentions.
Issues
[22]
The issues are accordingly:
(a)
jurisdiction and leave to appeal;
(b)
“
workplace”; and
(c)
constitutional challenge.
Jurisdiction
and leave to appeal
[23]
This Court has jurisdiction.
Constitutional rights are at issue. And the legal questions
concerning the interpretation
of “workplace” and the
extension of collective agreements raise arguable points of law of
patent public significance.
AMCU’s contentions are
considerable. Leave to appeal must be granted.
“
Workplace”
[24]
Two things are immediately notable
about the way the statute defines “workplace”. The
first is its focus on employees
as a collectivity. The second
is the relative immateriality of location. Both signal that
“workplace” has
a special statutory meaning.
[25]
First,
“workplace” is not the place where any single employee
works – like that individual’s workshop or
assembly line
or field or desk or office. It is where “the employees of
an employer”, collectively, work.
The statute approaches
the concept from the point of view of those employees as a
collectivity. This accords with the role
the term “workplace”
plays in the LRA. This sees workers as a collectivity, rather
than as isolated individuals.
And that in turn squares with the
statute’s objects. The promotion of orderly bargaining by
workers, collectively,
is one of the statute’s express primary
objects.
[22]
That the focus of the definition of “workplace” is on
workers as a collectivity rather than as separate individuals
fits.
[26]
The second point follows. It
is that location is not primary: functional organisation is.
The definition encompasses
one or more “place or places where
employees of an employer work”. This means that “the
place or places”
where workers work may constitute a single
workplace. That entails the intrinsic possibility of locational
multiplicity for
a single “workplace”. Right at the
outset this eliminates any notion, which the ordinary meaning of
“workplace”
might encourage, that each single place where
a worker works is a separate “workplace”.
[27]
The first part of the definition
creates a default rule that, regardless of the places, one or more,
where employees of an employer
work, they are all part of the same
workplace. The second part superimposes a proviso in the form
of an exception –
regardless of how many places where employees
work, different “operations” may be different workplaces
only if they
meet the criteria the definition specifies. The
key is whether an operation is independent – not where it is
located.
Yet again, no significance is attached to the “places”
where employees work, since the term features in both parts of
the
definition. Each independent operation, which constitutes a
separate “workplace”, may itself be at one or
more
separate locations.
[28]
Hence the proviso determines not so
much whether separate physical places of work are separate
workplaces, but rather whether independent
“operations”,
however geographically dispersed, are separate workplaces. The
pivotal concept is independence.
If there are two or more
operations and they are “independent of one another by reason
of their size, function or organisation”
then “the place
or places where employees work in connection with each independent
operation, constitutes the workplace for
that operation”.
This is a test of functional organisation, and not geography or
location.
[29]
Both
features of the definition – its approach to workers as a
collectivity, and its de-emphasis of geography – have
a
practical bite. They signal that for purposes of the LRA
“workplace” doesn’t have its ordinary meaning:
the
legislature has assigned a special meaning to the term.
[23]
It follows that AMCU’s contention that the ordinary meaning of
“workplace” applies, namely the geographical
places of
work of its members, at their individual mines, faces into a
conceptual windstorm. It must battle against not only
the
specified statutory wording, but the entire statutory context that
supports that meaning and in which it is embedded.
[30]
It is this statutory definition the
Labour Court and the Labour Appeal Court applied. Was each
AMCU-majority mine a separate
“workplace”? That
depends not on the mines’ geographic location or where the
individual workers worked,
but on the functional signifiers of
independence the definition lists. It requires one to determine
whether the employer
companies conduct two or more operations “that
are independent of one another by reason of their size, function or
organisation”.
[31]
On
this question, the facts before the Labour Court and the
Labour Appeal Court were not in dispute.
[24]
They related to the organisational methodology and practicalities of
each mining company. The Labour Court and the
Labour Appeal
Court both found, in conclusory terms, that the individual
AMCU-majority mines did not constitute independent operations.
They were not swayed by the fact that, at some of the individual
mines, the companies had concluded separate recognition agreements
with AMCU.
[25]
Each mining company constituted a single industry wide
workplace.
[26]
[32]
In
the face of these findings, AMCU contended that the statute’s
definition of “workplace” did not apply to section
23.
After all, AMCU pointed out, the definitions apply only “unless
the context otherwise indicates”. And
of course AMCU is
right that “context” should be construed broadly.
[27]
Nevertheless, its argument requires contextual indicators that negate
the application of the definition. Counsel for
AMCU was invited
in oral argument to give these but didn’t. He simply said
that the statutory definition cannot apply
to a particular provision
if it unreasonably limits a constitutional right. This squared
with AMCU’s argument overall
that constitutional principles of
interpretation pointed to a different result – namely that each
individual mine was a “workplace”
for purposes of section
23(1)(d).
[33]
So the argument that the statutory
definition does not apply did not turn on independent interpretive
indications. It invoked
constitutional considerations.
But constitutional principle and the statute’s objectives don’t
point away from
the definition’s focus on workers as a
collective, wherever they may work. They point towards it.
Differently
put, AMCU cannot plausibly argue that the statutory
definition shouldn’t apply to section 23 because of
constitutional principle
or purpose-related statutory
considerations. Those in truth negative its argument.
[34]
AMCU
contended that both the Labour Court and the Labour Appeal Court
erred in approaching the meaning of “workplace”
as solely
a question of fact, to the exclusion of any interpretive analysis in
which AMCU’s constitutional rights featured.
AMCU has a
point. Well, sort of. It is this. Applying a
statutory definition to the facts is seldom purely “a
question
of fact”. It is not as though a definition displays a
colour and you hold a garment up against it and ask
whether it
matches. Rather, applying a definition is itself a question of
verbal construction, in which constitutional values
and statutory
objectives remain ever-present. Interpretation and application
are coequal tasks.
[28]
Establishing whether each mine is a “workplace”
involves elements of both fact and law. What is more, the
LRA
does not define either “independent” or “operation”.
[29]
Each of these words is spongy with meaning. AMCU is right that,
when we apply the facts to these terms, we must keep
the statute’s
objectives in mind, and the constitutional principles underpinning
them.
[30]
The process is both evaluative and interpretive.
[31]
[35]
Why
is AMCU’s point only sort of? Because AMCU conflates the
Labour Appeal Court’s application of the
statutory
definition with the threshold question whether that definition
applies at all. AMCU contends that the Labour Appeal Court
was wrong to find that the meaning of “workplace” in the
context of section 23(1)(d) was solely a question of fact.
But
its argument does that Court’s approach less than justice.
The Labour Appeal Court first concluded that
the statutory
definition of “workplace” applied to section 23(1)(d)
[32]
– and indicated, correctly, that
this
determination was a matter of interpretation.
[33]
Its factual enquiry followed after.
[36]
So while AMCU is correct that the
Labour Appeal Court found that determining whether the AMCU-majority
mines constituted independent
operations was a question of fact, this
is not the same as saying that the
meaning
of “workplace” in the context of section 23(1)(d)
was determined solely as a question of fact.
[37]
The
question is not whether a single mine can constitute a “workplace”.
It obviously can. The definition
expressly provides for that.
Instead, the critical issue is whether any of the five AMCU-majority
mines was an independent
operation by reason of size, function or
organisation. Both the Labour Court and the Labour Appeal
Court determined
that each mining house operated integrally as a
single workplace, and that each AMCU-majority mine was not an
independent operation.
[34]
Even upholding AMCU’s argument that the application of the
statutory definition is not a purely factual enquiry does
not lead to
a different finding. No reason in constitutional principle,
legal analysis or factual assessment provides a reason
for this Court
to overturn those findings.
[35]
To this one should add that the findings of the Labour Court and the
Labour Appeal Court are owed special consideration since
they operate
as specialist tribunals.
[38]
Nor is there any reason why this
Court should intervene, against the grain of the statutory language,
to impose what AMCU calls
“the broad interpretation” of
workplace. This would hold that each AMCU-majority mine is a
workplace. AMCU
advances this “broad interpretation”
on the basis that it is reasonably consistent with the wording of the
statute
and does not result in a limitation of constitutional rights.
[39]
That’s not right. First,
to adopt AMCU’s argument, the Court would have to ignore
entirely the colour the statute
and the rights it implements give to
the interpretive process. As NUM persuasively counters,
adopting this “broad interpretation”
effectively involves
jettisoning the statutory definition and adopting a new,
independently created, meaning of “workplace”,
one that
flows from the facts of this case. But, as already said, there
is no sound reason to depart from the statutory definition.
[40]
It follows that the agreement was
validly extended to AMCU members at the five AMCU-majority mines.
The question now is whether
the statutory provision that allowed this
withstands constitutional scrutiny.
Constitutional
challenge
Infringement
of rights
[41]
AMCU contends that section 23(1)(d)
infringes upon the right to freedom of association, the right to
collective bargaining and the
right to strike. Its argument
both on the papers and at the hearing focused on the right to
strike. But the constitutional
right to freedom of association
is also of considerable importance.
[42]
At
the core of AMCU’s challenge is the statute’s application
of the principle of majoritarianism. The challenge
is freighted
with history, and burdened by recent clashes between unions in many
workplaces, including in the mining industry.
[36]
[43]
Majoritarianism
is both a premise of and recurrent theme throughout the LRA.
Our case law has long recognised this, from at
least the judgment in
Kem-Lin
,
[37]
but probably earlier.
[38]
In
Kem-Lin
,
Zondo JP said:
“
The
legislature has also made certain policy choices in the Act which are
relevant to this matter. One policy choice is that the
will of the
majority should prevail over that of the minority. This is good for
orderly collective bargaining as well as for the
democratisation of
the workplace and sectors. A situation where the minority dictates to
the majority is, quite obviously, untenable.
But also a proliferation
of trade unions in one workplace or in a sector should be
discouraged. There are various provisions in
the Act which support
the legislative policy choice of majoritarianism.”
[39]
Zondo
JP instanced various LRA provisions that illustrate the legislative
policy choice.
[40]
Two of the most obtrusive suffice. It is majoritarianism that
underlies the statute’s countenancing of both agency
shop
agreements (deductions for majority union fees from all employees,
both members and non-members),
[41]
and closed shop agreements (collective agreement may oblige all
employees to be members of the majority trade union).
[42]
This is not to say that these provisions are invulnerable to
constitutional attack. It is only to point to them as
piquantly
instancing the scheme of the statute as a whole.
[44]
It may be posited that if there is
to be orderly and productive collective bargaining, some form of
majority rule in the workplace
has to apply. What
section 23(1)(d) does is to give enhanced power within a
workplace, as defined, to a majority union:
and it does so for
powerful reasons that are functional to enhancing employees’
bargaining power through a single representative
bargaining agent.
NUM in fact contended that the major warrant for extending
agreements under section 23(1)(d) was to
promote collective
bargaining. There was, counsel said, merely a “knock on”
effect on the right to strike.
[45]
Counsel for NUM rightly noted that
to object to section 23(1)(d) purely on the basis that it applies
majoritarianism is something
of a phantom. This is because AMCU
itself seeks to enforce a form of majoritarianism. AMCU
complains about the constitutional
propriety of applying
majoritarianism to a sector-wide agreement under section 23. But
what it wants instead is for majoritarianism
to apply at each
individual mine – with the result that its majority at five of
them can prevail.
[46]
So AMCU’s complaints lack the
rigour of logical principle. Even so, they have practical force
and some ethical appeal.
If its claim to be the majority union
at the five mines fails, it suffers relegation to being a minority in
the sector as
a whole. That’s tough for a union that has
fought laboriously, against the odds, mine-by-mine, to establish
itself.
Hence it contends that the “principle of
majoritarianism does not achieve social justice for minority workers
whose social
circumstances may not be the same as those workers who
have mandated the majority”. This is a scarcely-veiled
claim
that AMCU represents the poorest and least-empowered workers in
the sector, and therefore that the Court should intervene to impose
mine-by-mine majoritarianism.
[47]
This plays into a rich social
debate. Nearly 23 years into democracy, and over two decades
since the adoption of the LRA,
it has been suggested that the
statute’s embrace of majoritarianism is no longer appropriate.
This is because it enforces
a “winner-takes-all approach”.
This was—
“
developed
and adopted when there was a fair degree of union stability, a
growing consolidation within the trade union movement,
and a strong
commitment to social dialogue and inclusive solutions within the
government, labour, business and civil society.”
[43]
[48]
Those conditions have avowedly
changed: but the statute has not. And from there springs AMCU’s
complaints. For
the statute’s current formulation
provides a specified way in which to ascertain the constituency
within which the majority
rules. This is strictly by workplace,
determined from the point of view of collectivity, subject only to
functionally determined
independence of operation.
[49]
Once majoritarianism is recognised
as a founding principle of the LRA, the statute must unavoidably
determine some practical way
in which the principle operates.
Without a constituency that defines it, there cannot be a
collectivity. AMCU’s
complaint is not that the majority
counts, but how to define the constituency within which the majority
counts. And thence
flows its constitutional grievance.
[50]
AMCU
is right that the codification of majoritarianism in section 23(1)(d)
limits the right to strike. The key question is
whether the
principle provides sufficient justification for that limitation.
Both the Labour Court and the Labour Appeal
Court gave detailed and
extensive consideration to this.
[44]
I do not seek to improve their reasoning. In short, the best
justification for the limitation the principle imposes
is that
majoritarianism, in this context, benefits orderly collective
bargaining.
[51]
Perhaps a different definition of
“workplace” might have worked equally well, or maybe even
better, or been fairer to
smaller or emergent unions. AMCU
makes a plangent case for saying so. But that is not the
question before us.
Our task as judges is not to pick and
choose between the rights and wrongs, advantages and disadvantages,
of different constituency
models. Our responsibility is much
narrower. It is to determine whether the model Parliament has
in fact chosen passes
scrutiny under the Bill of Rights.
[52]
Is
the legislative determination of the constituency within which the
majority counts, namely the workplace as defined, constitutionally
objectionable? Here freedom of association comes to the fore.
In
Bader
Bop
,
[45]
this Court interpreted the provisions of the LRA to protect the
organisational rights of minority unions.
[46]
The Court underscored the importance of freedom of association as it
emerged from international instruments that were pertinent
to
interpreting the LRA.
[47]
It noted that, although these instruments and the values they embody
do not require trade union pluralism, in contradistinction
to
majoritarianism, a majoritarian system can operate fairly only in
accordance with certain conditions. It must allow minority
unions to co-exist, to organise members, to represent members in
relation to individual grievances and to seek to challenge majority
unions.
[48]
[53]
To this should be added that the LRA
does not define when a trade union is “sufficiently
representative” to enjoy organisational
rights under Chapter
III. It allows for the representivity threshold to be agreed
upon in a collective agreement between
an employer and a minority
union. As this judgment later clarifies, possible abuses of
this kind are subject to review.
[54]
And
the statutory structures that enforce the majoritarian system
nevertheless allow minority unions freedom of association.
Minority unions have recruiting rights (which AMCU had),
[49]
organisational rights (which AMCU had),
[50]
deduction rights (which AMCU had),
[51]
recognition of shop stewards (which AMCU had),
[52]
time off for union office-bearers to do union work (which AMCU
had)
[53]
and bargaining rights (which AMCU had).
[54]
Though they did lose the right to strike while the agreement was in
force, none of the non-signatory unions or employees
lost any of
their organisational and collective bargaining entitlements.
[55]
This means that the LRA, though
premised on majoritarianism, does not make it an implement of
oppression. It does not entirely
suppress minority unions.
Its provisions give ample scope for minority unions to organise
within the workforce –
and to canvass support to challenge the
hegemony of established unions. It is precisely because the LRA
affords AMCU these
rights that AMCU, as an insurgent force in the
established union field, was able to increase its membership, its
strength and its
influence as powerfully as it has. And this is
important in determining the extent of the limitation on rights that
section
23(1)(d) imposes.
[56]
That
majoritarianism is functional to enhanced collective bargaining is
internationally recognised. Instruments NUM relied
upon in oral
argument clearly display this.
[55]
Indeed, seemingly paradoxically, promotion of collective bargaining
is so deeply rooted a principle of internationally recognised
labour
dispensations that they require merely adequate or sufficient
representivity for enforcement against non-members, and not
necessarily majority representation.
[56]
[57]
This
Court has recognised the constitutional warrant for majoritarianism
in the service of collective bargaining. In
TAWUSA
,
the Court considered the principle in the context of section 32.
[57]
Khampepe J emphasised that “the principle finds application
after a collective agreement has been concluded”,
namely when
the agreement is extended “at the behest of the majority after
the collective agreement process has run its course”.
[58]
The implication is analogous – that the principle applies also
to section 23 extensions.
[58]
And the limitation a section
23(1)(d) agreement imposes on the right to strike is strictly
circumscribed – in both ambit and
time. A collective
agreement extended to non-parties does not apply to them
indefinitely. It applies only for the duration
of the agreement
and regarding the specific issues it covers. Section 23(1) does
not countenance indefinite or far-reaching
extension. It
directly ties the limitation of the right to strike to the outcome of
the collective bargaining. It is
narrowly tailored to the
specific goal – orderly collective bargaining. Given
the carefully circumscribed ambit
of the limitation and the
importance of its purpose, it is reasonable and justifiable.
Rule
of law
[59]
AMCU takes aim also at the mechanism
by which the extension to non-parties was effected, and its impact
once extended. The
nub of its complaint is that section 23’s
unsupervised private extensions license lawless exercises of power.
The provision thereby violates the rule of law, and is
constitutionally offensive.
[60]
Its argument is that while the
extension of the agreement to non-parties, including AMCU, did not in
itself constitute an exercise
of public power, it was “tantamount
to the exercise of public power”. It points out that the
three mining companies
who through the Chamber concluded the
agreement employ nearly three-quarters of all employees in the entire
gold mining sector.
So the private extension of the agreement
“by and large impacted an entire sector in the [country’s]
economy”.
All this, it says, in private hands, with no
judicial or legislative checks and balances.
[61]
Here, AMCU submits, “the rule
of law is both relevant and applicable”. The section 23
scheme permits private actors
to exercise public power arbitrarily.
This is antithetical to the open, accountable, democratic principles
of our constitutional
state. In this way, section 23 offends
the principle of legality – and indeed “poses a serious
threat to our
democratic [s]tate”.
[62]
Hence
as an alternative to its interpretative challenge, AMCU asks the
Court to declare section 23(1)(d) unconstitutional and invalid.
AMCU’s rule of law challenge is not a rights-violation
plus limitation challenge. Instead, it impugns section 23(1)(d)
as irrational. It invokes the foundational value of the rule of
law to contend that the provision violates the principle
of
legality.
[59]
This is because it grants “private actors the right to
effectively exercise public power arbitrarily, that is without
observance of the rule of law”.
[63]
The
respondents urged that section 23(1)(d) did not involve the exercise
of public power. It was, they said, merely an ordinary
statutory provision that allowed legal consequences to flow from
private parties’ conduct. This was unobjectionable.
Both the Labour Court and the Labour Appeal Court endorsed this
approach. The Labour Court held that there is “nothing
inimical to the rule of law for legislation to provide for legal
consequences to flow from the conduct of private parties”.
[60]
The Labour Appeal Court similarly characterised the provision
approvingly as one that allowed self-regulation as a means
to
supporting collective bargaining.
[61]
[64]
In
adopting this approach, the respondents’ argument and the
Labour Appeal Court’s conclusion in effect treats
section 23(1)(d) as though it is similar to the Wills Act.
[62]
This allows testators to determine the post-mortem distribution
of their property. That distribution obviously affects
others –
some may receive, others may be excluded – but the invocation
of the statutory power remains in essence private:
one between the
testator and her earthly goods. The power is statutorily
sourced, but its exercise remains largely that of
a private property
owner choosing the devolution of her property after death. As
will appear, though the endpoint of the
Labour Court and the Labour
Appeal Court was unimpeachable, the path I take differs from theirs.
[65]
We
start with the springboard for AMCU’s rule of law attack.
The rule of law is enshrined as a foundational value in
the
Constitution.
[63]
From this it flows as “axiomatic” that the exercise
of public power must comply with the doctrine of legality,
which
stems from the rule of law.
[64]
This foundational principle binds Parliament. Its legislation
must show “a rational relationship between the
scheme which
[Parliament] adopts and the achievement of a legitimate governmental
purpose”, since “Parliament cannot
act capriciously or
arbitrarily”.
[65]
[66]
Invoking
Law
Society of South Africa
,
[66]
AMCU complained that section 23(1)(d) failed the test of
legislative rationality. There this Court emphasised that the
requirement that a legislative scheme must be rational “is not
directed at testing whether legislation is fair or reasonable
or
appropriate”, but “is restricted to the threshold
question whether the measure the lawgiver has chosen is properly
related to the public good it seeks to realise”.
[67]
This, the Court explained, is a lower threshold than a limitations
analysis under section 36 of the Constitution. That
asks
whether an infringement of an entrenched right is “reasonable
and justifiable”.
[68]
And indeed, the Court noted, to constitute a justifiable limitation,
a provision must necessarily be rational: “It
is self-evident
that a measure which is irrational could hardly pass muster as
reasonable and justifiable for purposes of restricting
a fundamental
right”.
[69]
[67]
That
reasoning applies here. As already explained, section 23(1)(d)
infringes on the right to strike, but this is justifiably
limited.
[70]
Embedded in this conclusion, as pointed out in
Law
Society of South Africa
,
is that the provision is also rational. Section 23(1)(d)
furthers the legitimate governmental purpose of promoting effective
collective bargaining by way of a scheme premised on
majoritarianism. As the provision is a constitutionally
permissible
limitation on certain entrenched rights, it is by
corollary rational.
[71]
[68]
And AMCU’s argument stems from
an incorrect premise. Permitting a private actor to exercise
public power does not inherently
violate the rule of law. Our
constitutional scheme is more complex. It casts up no
impenetrable wall between the public
and the private. This is
not least because the unjust grief of past exclusionary subordination
and oppression based on race,
which the Constitution is dedicated to
eradicating, was perpetrated through both public and private means.
And the risk our
Constitution recognises and confronts is that
patterns of exclusion and discrimination could be perpetuated through
ostensibly
“private” exercises of power.
[69]
Thus
the constitutional dispensation recognises that state organs and
public authorities may perform acts that are not public in
nature,
[72]
but conversely, and more pertinently to the present, that private
actors may perform acts that entail the exercise of public power.
[73]
This is because “public powers and public functions are
wider than governmental powers and governmental functions”.
[74]
The Bill of Rights itself binds natural and juristic persons if, and
to the extent, that it is applicable, taking into account
the nature
of the right and the nature of the duty it imposes.
[75]
The constitutional guarantee of just administrative action is
conferred without distinction as to whether the actor is governmental
or non-governmental.
[76]
And so the Promotion of Administrative Justice Act (PAJA),
[77]
enacted to fulfil this guarantee, expressly covers administrative
action taken by a natural or juristic person, other than an organ
of
state, when that person exercises a public power or performs a public
function in terms of an empowering provision.
[78]
[70]
Hence,
it is trite that state organs do not alone exercise public power.
Non-state organs may and do exercise public power.
[79]
Beyond the initial question of typology (private vs public) lies the
practically more crucial inquiry as to how the particular
exercise of
power is regulated and what safeguards exist for its exercise. When
legislation authorises private parties to
exercise public power the
question is thus how to ensure a rational relationship between their
exercise of power and the attainment
of legitimate legislative ends.
[71]
Neither
in its papers nor at the hearing did AMCU fully explain how
section 23(1)(d) is irrational. As shown earlier,
section
23(1)(d) promotes and serves the goals of collective bargaining,
which is clearly a legitimate legislative end.
[80]
[72]
AMCU
framed its rule of law argument as a challenge to the
constitutionality of section 23(1)(d), rather than to the particular
extension the Chamber and the contracting unions effected here. But
an extension could itself conceivably be subject to a
legality
challenge. The typology thus answers the question whether
invocation of the provision entails the exercise of a
public power.
From there follows the more important substantive inquiry as to what
safeguards apply to the exercise of the
power.
[81]
[73]
If the invocation of the powers
section 23(1)(d) confers is public, then its exercise must comply
with the principle of legality
– and from there a range of
review mechanisms is available to a party claiming to be unfairly
affected. The actual
exercise of the power the provision
confers on private parties can never occur lawlessly. It is
subject to review under the
principle of legality and, if it is
administrative action, under PAJA. So AMCU’s submission
that section 23(1)(d)
– in contrast to section 32 –
does not allow for judicial checks on extensions of collective
agreements is wrong.
[74]
So
does using section 23 to extend a collective agreement to
non-parties, including minority unions, entail the exercise of public
power? In answering this, the predominant focus is on the
nature of the power that is being exercised.
[82]
The question is not so much, who exercises the power, nor even, where
does the power come from: but what does the power look
and feel like?
What does it do? Pointers here include—
(a)
the source of the power;
(b)
the nature of the power;
(c)
its subject matter; and
(d)
whether
it involves the exercise of a public duty.
[83]
[75]
What do “public function”
and “public power” mean? Langa CJ illuminatingly
noted in a minority judgment
in
Chirwa
:
“
Determining
whether a power or function is ‘public’ is a notoriously
difficult exercise. There is no simple definition
or clear test to be
applied. Instead, it is a question that has to be answered with
regard to all the relevant factors, including:
(a) the relationship
of coercion or power that the actor has in its capacity as a public
institution; (b) the impact of the decision
on the public; (c) the
source of the power; and (d) whether there is a need for the decision
to be exercised in the public interest.
None of these factors will
necessarily be determinative; instead, a court must exercise its
discretion considering their relative
weight in the context.”
[84]
[76]
And
in
Grey’s
Marine
,
the SCA correctly stated that “the exercise of public power
generally occurs on a continuum with no bright line marking
the
transition from one form to another”.
[85]
[77]
In
AAA
Investments
,
the Micro Finance Regulatory Council, whose existence and functioning
was recognised and approved by the Minister of Trade and
Industry,
played a regulatory role in supervising financial transactions.
It took on many of the features of an organ of
state. In a
minority analysis, concurring in the majority’s order, O’Regan
J determined whether a private actor
exercised public power by asking
whether the decision is “coercive” in effect, and whether
the decision is related
to a “clear legislative
framework”.
[86]
Though the majority took a different path, nothing in its judgment
disavows the more general significance of O’Regan
J’s
analysis.
[78]
Those
features are present here. The decision by private parties to
invoke the power section 23(1)(d) affords them to extend
their
collective agreement to parties entirely alien to it has a coercive
effect: it binds non-parties to the agreement, willy-nilly.
And, as AMCU rightly points out here, the statute empowers
contracting parties to do this with just about industry-wide
effects.
The extension of the agreement also has extensive
implications for members of the public. For its duration,
non-member employees
are bound. Even more, they forfeit the
right to strike if the collective agreement regulates the issue in
dispute.
[87]
[79]
These are far-reaching effects.
They show that invoking section 23(1)(d) is not simply a
private matter between private parties.
It affects the public.
The rationale for the power and its exercise is the public interest
in improving workers’ conditions
through collectively agreed
bargains. What is more, the decision to conclude and extend the
agreement is rooted in Parliament’s
exercise of its legislative
power: it is licensed by legislation. The power is
statutorily sourced.
[80]
This all points distinctly to a
power more than private in nature. It is public. The conclusion
of a collective agreement
triggering a statutorily licensed extension
under section 23(1)(d) is in its effects and substance an exercise of
legislatively
conferred public power. It’s not the same
as the statutory power the Wills Act confers on testators.
[81]
Features pointing to “public”
are: (a) the decision is rooted in legislation and its effects are
circumscribed by the
statute; (b) the effect of the decision is
mandatory on non-parties and coercive on their constitutional
entitlements; (c) the
decision results in binding consequences
without those parties’ acquiescence; and (d) the rationale for
extension is a plainly
public goal, namely the improvement of
workers’ conditions through collectively agreed bargains.
[82]
The Chamber and the mining houses it
represented, together with the workplace-majority unions party to the
agreement, were not governmental
actors. Nevertheless their
conduct had a sufficiently public character, and entailed sufficient
public consequences, to make
what they did the exercise of public
power.
[83]
That
their exercise of power entailed public law consequences does not
mean that it was “administrative action” as defined
in
PAJA. This is because the decision to conclude an agreement
that the statute, upon fulfilment of the conditions it specified,
extends to non-parties, was not “of an administrative
nature”.
[88]
The parties were not administering policy or statutory powers; they
were agreeing amongst themselves. Their agreement
had
wide-ranging public consequences. But in concluding it they did
not act administratively. Their conduct was public,
but not
administrative, in nature.
[89]
[84]
This
typology has the important consequence that the conclusion of an
agreement under section 23(1)(d) is subject to judicial scrutiny.
An agreement concluded under the provision is reviewable under the
principle of legality. The principle requires that all
exercises of public power – including non-administrative action
– conform to minimum standards of lawfulness and
non-arbitrariness.
[90]
Invoking the statute’s enormous clout by using a
statutory power may not occur irrationally or arbitrarily.
[85]
AMCU’s grievance was of course
not that the collective agreement here was capricious, irrational or
arbitrary. It was
that the statute offended the Constitution
because a section 23(1)(d) agreement
might
be
. But since agreements
concluded under the provision are liable to scrutiny, that grievance
is abated.
[86]
One might ask how, if the statutory
provision itself is not irrational, and indeed passes limitations
analysis, there can be scope
for irrationality review in its
application. But a provision can rationally grant a power that
may be irrationally exercised.
That is a matter for practical
enforcement. A particular agreement may be vulnerable to attack
for irrational and undue effects
on minority unions and non-members.
An instance might be where parties to a section 23(1)(d) agreement
conclude it in flagrant
breach of an express agreement with minority
unions protecting them from the exercise of the power.
[87]
But that question need not be
answered now. The facts and the ambit of the parties’
arguments before us do not require
a speculative quest for instances
of in-practice (as opposed to facial) irrationality. It is
enough to note that parties
extending agreements in terms of section
23(1)(d) may not irrationally exercise the power the statute confers.
[88]
It follows that AMCU’s
challenges to the constitutional scheme that permits extensions of
collective agreements to non-parties
under section 23(1)(d)
cannot succeed.
Costs
[89]
Though AMCU in its written argument
sought costs, at the hearing all the parties agreed that, whatever
the outcome, no costs order
was appropriate.
Order
[90]
The following order is made:
1.
Leave to appeal is granted.
2.
The appeal is dismissed.
For
the Applicants:
P Kennedy SC and V September instructed by Larry Dave Incorporated
Attorneys
For
the First Respondent:
A Myburgh SC and T
Ngcukaitobi instructed by Edward Nathan
Sonnenbergs
For
the Fifth Respondent:
W Trengove SC and
A Hassim instructed by Cheadle Thompson &
Hayson Inc
For
the Eighth Respondent:
T J B Bokaba SC, S Poswa-Lerotholi and B M Lecoge
instructed by the State Attorney, Pretoria
[1]
Section
23(2) of the Constitution provides:
“
Every
worker has the right—
(a)
to form and join a trade union;
(b)
to participate in the activities and programmes of a trade union;
and
(c)
to strike.”
[2]
On the
disease burden mineworkers have suffered over the past century, see,
generally,
Mankayi
v AngloGold Ashanti Ltd
[2011] ZACC 3
;
2011 (3) SA 237
(CC);
2011 (5) BCLR 453
(CC) and the
judgments in
Nkala
v Harmony Gold Mining Company Ltd
2016
(5) SA 240
(GJ). As a result of extended industrial action,
the Miners’ Phthisis Act of 1911 was enacted. This piece
of
legislation was “the first milestone in the field of
statutorily enforceable compensation for mining-specific
occupational
diseases, and set the tone for future legislation”
(
Mankayi
at para 26). See also paras 26-58 of
Mankayi
for
a discussion of the legislative history governing workers’
compensation.
[3]
66 of 1995.
[4]
Section
23(1) provides:
“
A
collective agreement binds—
.
. .
(d)
employees who are not members of the registered trade union or trade
unions party to the agreement if—
(i)
the employees are identified in the agreement;
(ii)
the agreement expressly binds the employees; and
(iii)
that trade union or those trade unions have as their members the
majority
of employees employed by the employer in the workplace.”
[5]
Section 213
defines “workplace” as—
(a)
in relation to the public service—
(i)
for the purposes of collective bargaining
and dispute resolution, the registered scope of the Public Service
Co-ordinating Bargaining
Council or a bargaining council in a sector
in the public service, as the case may be; or
(ii)
for any other purpose, a national
department, provincial administration, provincial department or
organisational component contemplated
in section 7(2) of the
Public Service Act, 1994 (promulgated by Proclamation No. 103
of 1994), or any other part of
the public service that the Minister
for Public Service and Administration, after consultation with the
Public Service Co-ordinating
Bargaining Council, demarcates as a
workplace;
(b)
. . .
(c)
in all other instances means the place or
places where the employees of an employer work. If an employer
carries on or conducts
two or more operations that are independent
of one another by reason of their size, function or organisation,
the place or places
where employees work in connection with each
independent operation, constitutes the workplace for that
operation”.
[6]
Section
65(1) provides:
“
No
person may take part in a strike or a lock-out or in any conduct in
contemplation or furtherance of a strike or a lock-out
if—
(a)
that person is bound by a collective
agreement that prohibits a strike or lock-out in respect of the
issue in dispute”.
Section
65(3) provides:
“
Subject
to a collective agreement, no person may take part in a strike or a
lock-out or in any conduct in contemplation or furtherance
of a
strike or lock-out—
(a)
if that person is bound by—
(i)
any arbitration award or collective
agreement that regulates the issue in dispute; or
(ii)
any
determination made in terms of section
44 by the Minister that regulates the issue in dispute; or
(b)
any
determination made in terms of
Chapter
Eight
of the Basic Conditions of Employment Act and that
regulates the issue in dispute, during the first year of that
determination.”
[7]
The Chamber
is a registered employers’ organisation and acts as the
collective bargaining agent of its members. Collective
bargaining, at least in respect of wages and other substantive
conditions of employment, is conducted on a centralised basis,
in a
non-statutory bargaining forum. Since 2001, collective
agreements concluded in this manner have been applied by the
Chamber’s members, party to the agreement, to those employees
who are not members of the party unions, and also to non-union
members.
[8]
Chamber
of Mines of SA acting in its own name & on behalf of Harmony
Gold Mining Co Ltd v Association of Mineworkers &
Construction
Union
[2014]
ZALCJHB 13; (2014) 35
ILJ
1243 (LC).
[9]
Chamber
of Mines of SA acting in its own name & on behalf of Harmony
Gold Mining Co Ltd v Association of Mineworkers &
Construction
Union
[2014]
ZALCJHB
223; (2014) 35
ILJ
3111 (LC) (Labour Court judgment).
[10]
This Court
on 23 September 2014 dismissed AMCU’s application for leave to
appeal directly to it on the ground that it was
not in the interests
of justice to hear the appeal “at this stage”.
[11]
The Labour
Court granted leave on 7 October 2014.
[12]
Association
of Mineworkers & Construction Union v Chamber of Mines of SA
acting in its own name & on behalf of Harmony
Gold Mining Co
(Pty ) Ltd
[2016]
ZALAC 11
; (2016) 37
ILJ
1333 (LAC);
[2016] 9 BLLR 872
(LAC) (Coppin JA; Tlaletsi DJP and
Musi JA concurring) (LAC judgment).
[13]
Section
32(1) provides:
“
A
bargaining council may ask the Minister in writing to extend a
collective agreement concluded in the bargaining council to any
non-parties to the collective agreement that are within its
registered scope and are identified in the request, if at a meeting
of the bargaining council—
(a)
one or more registered trade unions whose
members constitute the majority of the members of the trade unions
that are party to
the bargaining council vote in favour of the
extension; and
(b)
one or more registered employers’
organisations, whose members employ the majority of the employees
employed by the members
of the employers’ organisations that
are party to the bargaining council, vote in favour of the
extension.”
[14]
Section
32(2) provides:
“
Within
60 days of receiving the request, the Minister must extend the
collective agreement, as requested, by publishing a notice
in the
Government Gazette declaring that, from a specified date and for a
specified period, the collective agreement will be
binding on the
non-parties specified in the notice.”
[15]
Section
32(3) provides:
“
A
collective agreement may not be extended in terms of subsection (2)
unless the Minister is satisfied that—
(a)
the decision by the bargaining council to
request the extension of the collective agreement complies with the
provisions of subsection
(1);
(b)
the majority of all the employees who,
upon extension of the collective agreement, will fall within the
scope of the agreement,
are members of the trade unions that are
parties to the bargaining council;
(c)
the members of the employers’
organisations that are parties to the bargaining council will, upon
the extension of the collective
agreement, be found to employ the
majority of all the employees who fall within the scope of the
collective agreement;
(d)
the non-parties specified in the request
fall within the bargaining council’s registered scope;
(dA)
the bargaining council has in place an effective procedure to deal
with applications
by non-parties for exemptions from the provisions
of the collective agreement and is able to decide an application for
an exemption
within 30 days;
(e)
provision is made in the collective
agreement for an independent body to hear and decide, as soon as
possible and not later than
30 days after the appeal is lodged, any
appeal brought against—
(i)
the bargaining council’s refusal of
a non-party’s application for exemption from the provisions of
the collective
agreement;
(ii)
the withdrawal of such an exemption by the
bargaining council;
(f)
the collective agreement contains criteria
that must be applied by the independent body when it considers an
appeal, and that
those criteria are fair and promote the primary
objects of this Act; and
(g)
the terms of the collective agreement do
not discriminate against non-parties.”
[16]
Section
32(5) permits the Minister to extend an agreement even where the
employer and unions party to the bargaining council do
not hold a
sectoral majority, provided they are “sufficiently
representative” within the registered scope of the
bargaining
council.
[17]
The
establishment, power and functions, registration and constitution of
bargaining councils is set out in sections 27, 28, 29
and 30 of the
LRA.
[18]
Section
23(5) of the Constitution provides:
“
Every
trade union, employers’ organisation and employer has the
right to engage in collective bargaining. National legislation
may
be enacted to regulate collective bargaining. To the extent that the
legislation may limit a right in this Chapter, the limitation
must
comply with section 36(1).”
[19]
Section
23(2)(c) of the Constitution.
[20]
Section 18
of the Constitution provides: “Everyone has the right to
freedom of association.”
[21]
Section 36
of the Constitution provides:
“
(1)
The rights in the Bill of Rights may be limited only in terms of law
of general
application to the extent that the limitation is
reasonable and justifiable in an open and democratic society based
on human
dignity, equality and freedom, taking into account all
relevant factors, including—
(a)
the nature of the right;
(b)
the importance of the purpose of the
limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and
its purpose; and
(e)
less restrictive means to achieve the
purpose.
(2)
Except as provided in subsection (1) or in any other provision of
the Constitution, no law may limit any right entrenched in the Bill
of Rights.”
[22]
Section
1(d)(i) and (ii) of the LRA.
[23]
The
existence of a statutory definition indicates that the legislature
has assigned a specific meaning to the word and not an
ordinary
meaning. See
Minister
of Defence and Military Veterans v Thomas
[2015] ZACC 26
;
2016 (1) SA 103
(CC);
2015 (10) BCLR 1172
(CC) at
para 20, adopted in
Liesching
v S
[2016] ZACC 41
at para 33.
[24]
The Labour
Court and the Labour Appeal Court refused to admit further evidence
AMCU sought to tender. Though AMCU’s
written argument
complained about this, the application for leave to appeal itself
did not specifically address the lower courts’
adverse orders
on this score, and counsel did not raise the issue in oral argument.
[25]
LAC
judgment above n 12 at para 69.
[26]
Labour
Court judgment above n 9 at paras 29-35 and LAC judgment above n 12
at paras 61-8.
[27]
See
Liesching
above
n 23 at para 34, where this Court stated that—
“
[w]here
the definition section provides that the definition should be
applied ‘unless the context otherwise indicates’,
‘context’ should be given a wide and not a narrow
meaning.”
See
also
Hoban
v ABSA Bank Ltd t/a United Bank
[1999]
ZASCA 12
;
1999 (2) SA 1036
(SCA) at para 20: “‘Context’
includes
the entire enactment in which the
word or words in contention appear”.
[28]
All
interpretations of law are themselves in a sense “factual”:
certain textual and other sources (for example, statutes,
common and
customary law) are excavated and marked out as factually “law”,
in contradiction to non-law. But
this process itself involves
a contextual analysis of those sources. See in this regard
Natal
Joint
Municipal
Pension Fund v Endumeni Municipality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA) at para 18. Indeed,
interpretation and application are simultaneous and intricated.
The most imaginative exponent
of this insight is Ronald Dworkin.
See Dworkin
Law’s
Empire
(Harvard
University Press, Cambridge 1986) at vii: “legal reasoning is
an exercise in constructive interpretation”,
in which we
advance “the best justification of our legal practices as a
whole”.
[29]
Section 213
of the LRA defines “operational requirements” but for
entirely different purposes and in an entirely different
context,
which does not help here.
[30]
This
accords with this Court’s approach to statutory
interpretation. See
Cool
Ideas 1186 CC v Hubbard
[2014] ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) at para
28, where this Court said:
“
A
fundamental tenet of statutory interpretation
is
that the words in a statute must be given their ordinary grammatical
meaning, unless to do so would result in an absurdity.
There
are three important interrelated riders to this general principle,
namely:
(a)
that statutory provisions should always be
interpreted purposively;
(b)
the relevant statutory provision must be properly
contextualised; and
(c)
all statutes must be construed
consistently with the Constitution, that is, where reasonably
possible, legislative provisions
ought to be interpreted to preserve
their constitutional validity. This proviso to the general principle
is closely related to
the purposive approach referred to in (a).”
See
also
Democratic Alliance v Speaker, National Assembly
[2016]
ZACC 8
;
2016 (3) SA 487
(CC);
2016 (5) BCLR 577
(CC) at paras 19-28;
Kubyana v Standard Bank of South Africa Ltd
[2014] ZACC 1
;
2014 (3) SA 56
(CC);
2014 (4) BCLR 400
(CC) at para 18; and
National
Credit Regulator v Opperman
[2012] ZACC 29
;
2013 (2) SA 1
(CC);
2013 (2) BCLR 170
(CC) at para 105.
[31]
It is
notable that Annexure A to the impugned agreement itself ends with
this asseveration:
“
It
is agreed that the Mines and Operations of each Employer as
described above constitutes a single workplace in respect of that
Employer, for the purposes of
section 23(1)(d)
of the
Labour
Relations Act 66 of 1995
.”
The
point is that the application of the statutory definition here
cannot occur by stipulation.
[32]
LAC
judgment above n 12 at para 83.
[33]
Id at para
51, where the Labour Appeal Court explained:
“
Section
213
of the LRA is unequivocal that the defined meaning will apply
throughout the LRA, unless the context in which the term is used
in
the LRA indicates otherwise. This is not an unusual provision.
It is an established principle of interpretation
of statutes
that where a statute contains definitions, the defined meanings must
be applied throughout the statute, unless the
court is satisfied
that the defined meaning does not fit in the context and that
another meaning is to be given to the word.”
[34]
Labour
Court judgment above n 9 at para 35 and LAC judgment above n 12 at
para 69.
[35]
As noted in
[34], applying the statutory definition involves elements of both
fact and law. AMCU raised certain factual
arguments in their
written submissions about the level of integration at the respondent
mining businesses, but did not challenge
the meaning of
“independent” or “operation” in the
statutory definition – nor did it raise other
legal arguments
concerning its application. In
Makate
v Vodacom Ltd
[2016] ZACC 13
;
2016 (4) SA 121
(CC);
2016 (6) BCLR 709
(CC) at para
39, the Court confirmed that—
“
this
being the highest court in the Republic which is charged with
upholding the Constitution, and deciding points of law of general
public importance, this [C]ourt must not be saddled with the
responsibility of resolving factual disputes where disputes of that
kind have been determined by lower courts. Deciding factual disputes
is ordinarily not the role of apex courts. Ordinarily, an
apex court
declares the law that must be followed and applied by the other
courts. Factual disputes must be determined by the
lower courts and
when cases come to this [C]ourt on appeal, they are adjudicated on
the facts as found by the lower courts. Of
course this principle
does not apply to matters that come directly to this [C]ourt.”
[36]
See
Ngcukaitobi “Strike Law, Structural Violence and Inequality in
the Platinum Hills of Marikana” (2013) 34
ILJ
836 at 856, who expresses the view that “[i]f unions are to
survive in this new atmosphere of union rivalry and general
trade
union hostility, they themselves must broaden their mandate to
address the effects of the current inequalities in the mining
sector
and attempt not only to increase wages but to encourage fair working
conditions, expanded social benefits and the standardisation
of
wages.”
[37]
Kem-Lin
Fashions CC v Brunton
[2000] ZALAC 25
;
(2001)
22
ILJ
109 (LAC);
[2001] JOL 7711
(LAC) (
Kem-Lin
).
[38]
Counsel
referred us to the first-instance judgment of Zondo AJ in
Specialty
Stores v SA Commercial Catering & Allied Workers Union
(1997)
18
ILJ
992 (LC);
[1997] 8 BLLR 1099
(LC) (reversed on grounds not material
to this point:
SA
Commercial Catering & Allied Workers Union v Speciality Stores
Ltd
(1998) 19
ILJ
557 (LAC); [1998] JOL 2102 (LAC); [1998] 4 BLLR 352 (LAC)).
[39]
Kem-Lin
above
n 37 at para 19.
[40]
These
included sections 14(1), 16(1), 18(1), 32(1)(a) and (b), 32(3)(a),
(b), (c) and (d); 32(5) and 78(b).
[41]
Section 25.
[42]
Section 26.
[43]
Kahn “A
Chance to Reassess our System of Industrial Relations”
Business
Day
(1 October 2012), available at
http://www.businesslive.co.za/bd/opinion/2012-10-01-a-chance-to-reassess-our-system-of-industrial-relations/
quoted in Cohen “Limiting Organisational Rights of Minority
Unions:
POPCRU
v Ledwaba
2013 11 BLLR 1137
(LC)” (2014) 17
Potchefstroom
Electronic Law Journal
60. Professor Cohen adds:
“
Abject
poverty, a loss of confidence in existing bargaining structures, and
disappointed expectations have led to the alienation
of unskilled
and semi-skilled vulnerable employees from majority unions. Minority
unions have taken up the cudgels of frustrated
and disempowered
employees – that have tired of the ‘co-dependent comfort
zone’ that majoritarianism has engendered.
The Marikana
experience has largely been attributed to the unsuitability of the
current collective bargaining model within the
South African
socio-economic and political landscape. As Brassey notes:
‘
Majoritarianism,
the leitmotif of both industry bargaining and plant-level
organisational rights, is too crude to give proper
expression to the
interests of minority unions, which frequently represent skilled or
semi-skilled workers but, as the Marikana
experience demonstrates,
who may simply be acting on behalf of workers who feel alienated
from the majority union.’”
[44]
Labour
Court judgment above n 9 at paras 56-74 and LAC judgment above n 12
at paras 101-27.
[45]
National
Union of Metal Workers of South Africa v Bader Bop (Pty) Ltd
[2002]
ZACC 30
;
2003 (3) SA 513
(CC);
2003 (2) BCLR 182
(CC) (
Bader
Bop
).
[46]
Id at para
36:
“
[I]t
can be said that the jurisprudence of the enforcement committees of
the ILO would suggest that a reading of the Act which
permitted
minority unions the right to strike over the issue of shop steward
recognition, particularly for the purposes of the
representation of
union members in grievance and disciplinary procedures, would be
more in accordance with the principles of
freedom of association
entrenched in the ILO Conventions. Similarly, it would avoid a
limitation of the right of freedom of association
in section 18 of
our Constitution; and the rights of workers to form and join trade
unions and to strike; as well as the right
of trade unions to
organise and bargain collectively entrenched in section 23 of our
Constitution.”
[47]
International
Labour Organisation (ILO) Committee of Experts’ assessment of
article 2 of the Freedom of Association and
Protection of the Right
to Organise Convention, 1948 (No. 87), cited in para 31 of
Bader
Bop
above
n 45. Article 2 of the Convention on Freedom of Association
and Protection of the Right to Organise provides:
“
Workers
and employers, without distinction whatsoever, shall have the right
to establish and, subject only to the rules of the
organisation
concerned, to join organisations of their own choosing without
previous authorisation.”
[48]
Bader
Bop
above note 45 at para 31.
[49]
Section
12(1).
[50]
Section
12(2) and (3).
[51]
Section 13.
[52]
Section 14.
[53]
Section 15.
[54]
Sections 8,
16, 27 and 28.
[55]
ILO
Collective Agreements Recommendation, 1951 (No. 91) (Collective
Agreements Recommendation) at article 5(1):
“
Where
appropriate, having regard to established collective bargaining
practice, measures, to be determined by national laws or
regulations
and suited to the conditions of each country, should be taken to
extend the application of all or certain stipulations
of a
collective agreement to all the employers and workers included
within the industrial and territorial scope of the agreement.”
ILO
Committee of Experts’ General Survey on the Fundamental
Conventions concerning Rights at Work in Light of the ILO
Declaration on Social Justice for a Fair Globalisation 2008 (Report
III (Part 1B) ILO Conference 102st Session 2012) (ILO Committee
of
Experts’ General Survey) at para 245:
“
The
Committee considers that the extension of collective agreements is
not contrary to the principle of voluntary collective bargaining
and
is not in violation of Convention No. 98.”
Freedom
of Association: Digest of Decisions and Principles of the Freedom of
Association Committee of the Governing Body of the
ILO (5 ed, 2006)
(Freedom of Association: Digest of Decisions and Principles) at
para 1052:
“
When
the extension of the agreement applies to non-member workers of
enterprises covered by the collective agreement, this situation
in
principle does not contradict the principles of freedom of
association, in so far as under the law it is the most
representative
organisation that negotiates on behalf of all
workers, and the enterprises are not composed of several
establishments (a situation
in which the decision respecting
extension should be left to the parties).”
[56]
Collective
Agreements Recommendation above n 55 at article 5(2):
“
National
laws or regulations may make the extension of a collective agreement
subject to the following, among other, conditions:
(a) that the
collective agreement already covers a number of the employers and
workers concerned which is, in the opinion of
the competent
authority, sufficiently representative”.
ILO
Committee of Experts’ General Survey above n 55 at para 245:
“
National
laws or regulations may make the extension of the collective
agreement subject to the following, among other, conditions:
(a)
that the collective agreement already covers a number of the
employers and workers concerned which is, in the opinion of
the
competent authority, sufficiently representative”.
Freedom
of Association: Digest of Decisions and Principles above n 55 at
paras 356 and 1052:
“
The
fact of establishing in the legislation a percentage in order to
determine the threshold for the representativeness of organisations
and grant certain privileges to the most representative
organisations (in particular for collective bargaining purposes)
does
not raise any difficulty provided that the criteria are
objective, precise and pre-established, in order to avoid any
possibility
of bias or abuse. . . . When the extension of the
agreement applies to non-member workers of enterprises covered by
the collective
agreement, this situation in principle does not
contradict the principles of freedom of association, in so far as
under the law
it is the most representative organisation that
negotiates on behalf of all workers”.
[57]
Transport
and Allied Workers Union of South Africa v Putco Ltd
[2016] ZACC 7
(CC);
2016 (4) SA 39
(CC);
2016 (7) BCLR 858
(CC)
(
TAWUSA
)
at para 52.
[58]
Id at para
63.
[59]
Affordable
Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC)
(
Affordable
Medicines
)
and
New
National Party of South Africa v Government of the Republic of South
Africa
[1999] ZACC 5
;
1999 (3) SA 191
(CC);
1999 (5) BCLR 489
(CC) (
New
National Party
).
[60]
Labour
Court judgment above n 9 at para 47.
[61]
LAC
judgment above n 12 at para 136.
[62]
7 of 1953.
[63]
Section
1(c).
[64]
Albutt v
Centre for the Study of Violence and Reconciliation
[2010]
ZACC 4
;
2010
(3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at para 49. See also
Affordable
Medicines
above
n 59 at para 49.
[65]
New
National Party
above
n 59 at para 19.
[66]
Law
Society of South Africa v Minister for Transport
[2010] ZACC 25
;
2011 (1) SA 400
(CC);
2011 (2) BCLR 150
(CC) at para
35.
[67]
Id.
[68]
Id at para
38.
[69]
Id at para
37.
[70]
See [58].
[71]
See
Law
Society of South Africa
above n 66 at para 37, where the Court explained that “the
requirement of rationality is indeed a logical part of the
proportionality test.”
[72]
Cape
Metropolitan Council v Metro Inspection Services (Western Cape) CC
[2001] ZASCA 56; 2001 (3) SA 1013 (SCA).
[73]
See
AAA
Investments (Pty) Ltd v Micro Finance Regulatory Council
[2006]
ZACC 9
;
2007 (1) SA 343
(CC);
2006 (11) BCLR 1255
(CC) (
AAA
Investments
),
and especially the minority judgment of O’Regan J.
[74]
Plasket
The
Fundamental Right to Just Administrative Action: Judicial Review of
Administrative Action in the Democratic South Africa
(DPhil thesis, Rhodes University, 2002) at 195.
[75]
Section 8
of the Constitution provides:
“
(1)
The Bill of Rights applies to all law, and binds the legislature,
the executive,
the judiciary and all organs of state.
(2)
A provision of the Bill of Rights binds a natural or a juristic
person if, and to the extent that, it is applicable, taking into
account the nature of the right and the nature of any duty imposed
by the right.
(3)
When applying a provision of the Bill of Rights to a natural or
juristic person in terms of subsection (2), a court—
(a)
in order to give effect to a right in the Bill, must apply, or if
necessary develop, the common law to the extent that legislation
does not give effect to that right; and
(b)
may develop rules of the common law to limit the right, provided
that the limitation is in accordance with section 36(1).
(4)
A juristic person is entitled to the rights in the Bill of Rights
to
the extent required by the nature of the rights and the nature of
that juristic person.”
[76]
Section 33
of the Constitution provides:
“
(1)
Everyone has the right to administrative action that is lawful,
reasonable
and procedurally fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.
(3)
National legislation must be enacted to give effect to these rights,
and must—
(a)
provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
(b)
impose a duty on the state to give effect to the rights in
subsections
(1) and (2); and
(c)
promote an efficient administration.”
[77]
3 of 2000.
[78]
Section
1(i) of PAJA provides:
“
administrative
action” means any decision taken, or any failure to take a
decision, by—
(a)
an organ of state, when—
(i)
exercising a power in terms of the Constitution or a provincial
constitution; or
(ii)
exercising a public power or performing a public function in terms
of any legislation; or
(b)
a natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in terms
of an empowering provision, which adversely affects the rights
of
any person and which has a direct, external legal effect, but does
not include—
(aa)
the executive powers or functions of the National Executive,
including the
powers or functions referred to in sections
79(1) and (4), 84(2)(a),
(b), (c), (d), (f), (g), (h), (i) and (k), 85(2)(b),
(c),
(d) and (e),
91
(2),
(3), (4) and (5), 92(3),
93,
97,
98,
99
and 100
of the Constitution;
(bb)
the executive powers or functions of the Provincial Executive,
including
the powers or functions referred to in
sections
121
(1) and (2), 125(2)(d),
(e) and (f), 126,
127(2),
132(2),
133(3)(b),
137,
138,
139
and
145
(1)
of the Constitution;
(cc)
the executive powers or functions of a municipal council;
(dd)
the legislative functions of Parliament, a provincial legislature or
a municipal
council;
(ee)
the judicial functions of a judicial officer of a court referred to
in section
166 of the Constitution or of a Special Tribunal established
under section
2 of the Special Investigating Units and Special
Tribunals Act,
1996 (Act No.74 of 1996), and the judicial functions of a
traditional leader under customary law or any other
law;
(ff)
a decision to institute or continue a prosecution;
(gg)
a decision relating to any aspect regarding the nomination,
selection or
appointment of a judicial officer or any other person,
by the Judicial Service Commission in terms of any law;
(hh)
any decision taken, or failure to take a decision, in terms of any
provision
of the
Promotion of Access to Information Act, 2000
; or
(ii)
any
decision taken, or failure to take a decision, in terms of
section
4
(1).”
[79]
This
follows from this Court’s endorsement of
Dawnlaan
Beleggings (Edms) Bpk v Johannesburg Stock Exchange
1983
(3) SA 344
(W) (
Dawnlaan
)
in the majority judgment of Yacoob J in
AAA
Investments
above
n 73 at para 31:
“
In the
pre-constitutional era in South Africa the nature of institutions
and the way in which they exercised their power became
relevant in
the context of determining whether particular decisions were subject
to judicial review. The Court in
Dawnlaan
had to consider whether the decisions of the Johannesburg Stock
Exchange (JSE) were subject to judicial review. It was necessary
there to decide the correctness of the contention that the decisions
of the JSE were not subject to judicial review because the
JSE was a
private body. The High Court placed considerable emphasis on the
fact that the legislation in terms of which the JSE
had been
established requires a stock exchange (a) to be licensed if it was
in the public interest; (b) to ensure that its rules
safeguard and
further the public interest; and (c) to list securities only if that
was in the public interest. The relevant legislation
imposed upon
the JSE a public duty to adhere to these rules and requirements, the
Court held, and added that the functions of
the JSE affected the
public and indeed the whole economy. The Court concluded that, to
regard the JSE as a private entity would
be to ignore commercial
reality and the very public interest that the Legislature sought to
protect. It ultimately held that
the decisions of the JSE are
subject to judicial review. The Appellate Division confirmed the
correctness of this High Court
approach in the
Witwatersrand
Nigel
case.”
[80]
See [51] –
[58].
[81]
See
Craig “Public Law and Control over Private Power” in
Taggart
The
Province of Administrative Law
(Hart Publishing, Oxford 1997) at 211: “the fact that a
particular institution is felt to possess public power should not
lead inexorably to the conclusion that all principles of a public
law nature should be equally applicable”.
[82]
Grey’s
Marine Hout Bay (Pty) Ltd v Minister of Public Works
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) (
Grey’s
Marine
)
at para 20. Nugent JA made this statement in determining
whether the power exercised was administrative in nature –
but
the reasoning applies all the more to determining the antecedent
question whether the conduct was public or private.
[83]
Id at para
25.
[84]
Chirwa v
Transnet Ltd
[2007]
ZACC 23
;
2008 (4) SA 367
(CC);
2008 (3) BCLR 251
(CC) at para 186.
[85]
Grey’s
Marine
above n 82 at para 25.
[86]
AAA
Investments
above n 73 at para 119.
[87]
Section
65(3)(a).
[88]
Section
1(v)
of PAJA provides:
“
decision”
means any decision of an administrative nature made, proposed to be
made, or required to be made, as the case
may be, under an
empowering provision, including a decision relating to—
(a)
making, suspending, revoking or refusing
to make an order, award or determination;
(b)
giving, suspending, revoking or refusing
to give a certificate, direction, approval, consent or permission;
(c)
issuing, suspending, revoking or refusing
to issue a licence, authority or other instrument;
(d)
imposing
a
condition or restriction;
(e)
making
a
declaration, demand or requirement;
(f)
retaining, or refusing to deliver up, an
article; or
(g)
doing
or
refusing to do any other act or thing of an administrative nature,
and a reference to a failure to take a decision must be
construed
accordingly.”
[89]
Free
Market Foundation v Minister of Labour
[2016]
ZAGPPHC 266;
2016 (4) SA 496
(GP) concerned a challenge to
section
32
of the LRA. In that case, the High Court went further, and
considered the possibility that an extension of a collective
agreement made in a bargaining council framework could amount to
administrative action. The Court found that while the
negotiation and conclusion of a collective agreement would not
necessarily constitute administrative action, the parties’
request under
section 32(1)
to the Minister to extend the
agreement may constitute administrative action. The Court was
inclined to find that PAJA
would apply; and if not, the decision
would still be subject to rationality and legality review.
Whatever
the position in regard to
section 32
,
section 23
extensions entail
the exercise of public power. A section 23(1)(d) extension
occurs without more upon the conclusion of
an agreement that
conforms to the provision’s specifications. Differently
put, the parties’ employment of the
statutory provision by
itself entails extension. This entails a public dimension.
Unlike extensions under
section 32
, there is a single rather than a
two-step process.
[90]
In
Pharmaceutical
Manufacturers Association of SA: In re Ex parte President of the
Republic of South Africa
[2000]
ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 85,
Chaskalson P explained it thus:
“
It
is a requirement of the rule of law that the exercise of public
power by the Executive and other functionaries should not be
arbitrary. Decisions must be rationally related to the purpose for
which the power was given, otherwise they are in effect arbitrary
and inconsistent with this requirement. It follows that in order to
pass constitutional scrutiny the exercise of public power
by the
Executive and other functionaries must, at least, comply with this
requirement. If it does not, it falls short of the
standards
demanded by our Constitution for such action.”